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GENERAL COMMERCIAL

What are the benefits of Commercial Mediation?

Mediation can help clients resolve disputes faster than your standard Court process saving time and money. Generally the best solution to a problem is one worked out by the clients themselves and mediation offers the clients a chance to craft a solution that meets their needs. Many people find mediation more satisfying than a trial because they play an active role in resolving their company's dispute, rather than having a solution determined by an appointed Judge or an Arbitrator.

The mediation process is informal and completely confidential. Clients in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial.

In situations where the clients have an ongoing relationship such as employer/employee or supplier/fabricator, mediation is helpful because it promotes preservation of the business relationship.

What are the common types of types of mediation?

Facilitative or Interest Based Mediation

In facilitative mediation, the mediator facilitates an understanding of each parties own underlying interests as well as an understanding of the other parties underlying interests in the dispute. The concept is that by understanding everyone's interests the clients will reach a mutually agreeable resolution. The mediator asks questions; validates clients' points of view; searches for interests underneath the positions taken by clients; and assists the clients in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the clients, does not give his or her own advice or opinion as to the outcome of the case, nor do they predict what a court would do with the case. The mediator is in charge of the process, while the clients are in charge of the outcome.

Evaluative Mediation

Evaluative mediation starts off like facilitative mediation however after all parties interests have been established the process moves on to a new level. The next step in the process is modeled on settlement conferences held by judges. An evaluative mediator assists the clients in reaching resolution by pointing out the weaknesses of their cases based on an understanding of their interests and predicting what a judge or arbitrator likely would do. An evaluative mediator might make formal or informal recommendations to the clients as to the outcome of the dispute. Evaluative mediators are concerned with the legal rights of their clients as well as their interests. Mediators evaluate the dispute based on all these principles and the legal concepts of fairness. Evaluative mediators will often have separate meetings with the clients and their attorneys (called caucussing). They help the clients and attorneys evaluate their interests and their legal position and the costs vs. the benefits of pursuing a Court trial or an Arbitration rather than settling in mediation. The evaluative mediator structures the process and may directly influence the outcome of mediation.

Transformative Mediation

Transformative mediation is based on the values of "empowering" each of the clients as much as possible and "recognition" by each of the clients of the other clients' needs, interests, attitudes, values, beliefs and points of view. The potential for transformative mediation is that any or all clients or their relationships may be transformed during the mediation. Transformative mediators meet with clients together since only the parties themselves can give each other "recognition".

What style of mediation is used at Keyte and Associates?

At Keyte and Associates we subscribe to all of the styles and the processes that might best lead to resolving disputes between clients. We are not interested in being pure theorists or ardent supporters of one theory over another. We believe that successful mediators mediate on a continuum of styles depending on the circumstances and the wishes of the client. Our philosophy and our standards have evolved from practical experience and are based on what has worked for clients in the past; what we believe to be most effective in helping our clients achieve a resolution. We will always use practises that best fit the clients' situation and their expectations for dispute resolution. This allows for a full consideration of our clients' situations and expectations.

What are the benefits of Commercial Arbitration?

Arbitration has become more and more widely accepted as a legitimate means for settling disputes arising from a private or an international contract. Indeed, many contracts now require arbitration rather than Court trials for settling disputes.

But why defer to arbitration instead of a Court of competent jurisdiction?

1. Flexibility and speed
Arbitration allows the clients to proceed quickly because the clients are not subject to the usual delay between readiness for trial and a hearing date. In addition, the arbitrator may establish a tight schedule thus ensuring a quick hearing. Hearing dates are fixed in accordance with your priorities and availability and not with what suits the Clerk of the Court.

2. Choosing the arbitrator
Having the possibility to participate in choosing the arbitrator(s) proves a definite advantage compared with the assignment of cases to Justices. Arbitration allows the clients to choose among arbitrators with special skills or knowledge on technical and/or legal aspects. You are essentially choosing a private judge. Do you really want a criminal background Justice hearing your complex international insurance trial?

3. Confidentiality of the process
Medias, competitors or simply the curious are not permitted in the Pre-hearing or the Hearing to arbitration; nobody wishes to expose personal matters and sometimes personality conflicts to the public . Also there are no court records that are obtainable by the public.

4. Arbitrators' decisions are final and subject only to limited appeals
The Arbitrator imposes a binding enforceable decision on the clients to the arbitration. The Arbitrator controls the process - which can be as formal as a trial or as informal as mediation - and the outcome, which is a binding enforceable decision. The purpose of arbitration is to determine a final decision on all matters brought to the arbitration.

However there are certain exceptions that allow an Arbitrator's decision to be appealed to Court under the Arbitration Act namely:

- the Arbitrator had an undisclosed bias toward one client that affected the decision
- the Arbitrator erred with respect to a point of law that affected the decision
- the Arbitrator made a mistake in fact that affected the decision
- the Arbitrator's decision was GROSSLY unfair.

To date, courts have been hesitant to interfere with an Arbitrator's decision, unless at least one of the above exceptions has resulted in an unjust decision. Furthermore the court has the authority to send the matter back to the Arbitrator for further consideration as directed by the court which may or may not result in an amended decision.

Types Of Arbitration Found In Commercial Applications

Voluntary arbitration implies that the clients to a dispute, unable to compromise their differences by themselves or with the help of a mediator, agree to submit the conflict/dispute to an impartial authority whose decisions they are ready to accept. In other words, under voluntary arbitration, the clients to the dispute can and do voluntarily refer their dispute to arbitration. They must sign an Agreement to Arbitrate since they either have no written agreement or their agreement is silent on arbitration.

Compulsory arbitration is one where the clients are required to accept arbitration per the Arbitration Clause in their agreement. This is often the case where contracts have mandatory arbitration clauses. When one of the clients to a dispute feels there has been a breach of the agreement by an act of the other, it shall apply to an arbitrator, usually of its choice, to start the process under the conditions set out in the Arbitration Clause in their contract.

Styles of Arbitration

High-Low Arbitration
High-Low Arbitration is an arbitration where the parties to the dispute agree in advance as to the limits within which the arbitral tribunal must render its award. It is only generally useful where an agreed statement of facts leaves only the amount of compensation open for dispute. If the award is lower than the agreed minimum then the defendant must pay the lower limit; if the award is higher than the agreed maximum, the defendant need only pay the agreed upper limit. If the award falls within the agreed range then the defendant pays the amount set by the arbitrator. The parties may or may not advise the arbitrator as to the range of the settlement before beginning.

Baseball Arbitration
The arbitrator must choose only between two options and cannot split the difference or select an alternative position. One client gets the home run and the other strikes out.

Night Baseball Arbitration
Night Baseball Arbitration is a variation of baseball arbitration where each client makes a settlement offer in writing but the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the amount of the claim in the usual way, and the clients agree to accept and be bound by the offer which is closest to the tribunal's award. There is no middle road.

Standard Arbitration
This is arbitration conducted under the authority of statute or legislation and requires the clients to put the dispute before an arbitrator in the form of a mini-trial. These can be informal or similar to a formal court trial. The Arbitrator hears and weighs the evidence then issues a decision and the reasons for his decision.